Regina v M’Pherson: 1857

The accused was charged with breaking and entering a dwelling house and stealing certain goods therein. At the time of the breaking and entering the goods were not in the house. He was acquitted of the felony but convicted of breaking and entering and attempting to steal the prosecutor’s goods.
Held: The appeal succeeded.
Cockburn CJ said: ‘Here the prisoner had the intention to steal before he went into the house ; but when he got there the goods specified in the indictment were not there ; how then could he attempt to steal those goods? There can be no attempt asportare unless there is something asportare.’ and ‘The word attempt clearly conveys with it the idea, that if the attempt had succeeded the offence charged would have been committed, and therefore the prisoner might have been convicted if the things mentioned in the indictment or any of them had been there ; but attempting to commit a felony is clearly distinguishable from intending to commit it. An attempt must be to do that which, if successful, would amount to the felony charged ; but here the attempt never could have succeeded, as the things which the indictment charges the prisoner with stealing had already been removed-stolen by somebody else.’
Baron Bramwell said: ‘The argument that a man putting his hand into an empty pocket might be convicted of attempting to steal, appeared to me at first plausible; but suppose a man, believing a block of wood to be a man who was his deadly enemy, struck it a blow intending to murder, could he be convicted of attempting to murder the man he took it to be?’


Cockburn CJ, Baron Bramwell


(1857) Dears and BCC 197, [1857] EngR 33, (1857) Dears and B 197, (1857) 169 ER 975



Cited by:

CitedHaughton v Smith, On Appeal From Regina v Smith (Roger) HL 21-Nov-1973
The defendant appealed against his conviction for attempting to handle stolen goods. They were to be delivered to him in a van, but the meat was intercepted and recovered by the police. The defendant argued that he should not be convicted of . .
CitedRothschild v Associated Newspapers Ltd QBD 10-Feb-2012
The claimant said that an article published by the defendant was defamatory. He said that the article implied that in his business associations he had put others at risk to their reputations.
Held: The action failed. The words were indeed . .
Lists of cited by and citing cases may be incomplete.


Updated: 01 May 2022; Ref: scu.254552